Chaturvedi, J.

[1] Srimati Subhana has come up in revision against her conviction under Section 448, Penal Code by the Special Magistrate of Lucknow. She was sentenced to pay a fine of Rs. 20/- and in default she was directed to undergo rigorous imprisonment for one month. She went in appeal before the Assistant Sessions Judge, who maintained the order of the Magistrate. She has now come up in revision on the ground that her conviction under Section 448, I. P. C. was illegal.

[2] The facts of the case lie within a narrow compass. Hashmat Ali complainant filed a salt for ejectment against Munna Lal, son of the applicant. The suit was decreed and ultimately the possession of the portion of the house was delivered to Hashmat Ali on 3-2-1950 by the Civil Court. Hashmat Ali then put his lock on that portion of the house. A few days later when Hash-mat Ali went to realise rent from some other tenant, he found the accused in possession of the house after breaking open the lock which had been put by the complainant. Hashmat Ali at first tried to secure the help of the police to put him in possession of the house again. Ultimately, he filed a complaint about six months after the occurrence,

[3] The facts stated above have not been seriously disputed before us. Both the Courts below have found that the complainant had entered into actual possession of the premises in suit on 3-2-1950. They have further held that the lock which had been put on the house by the complainant had been broken open by the applicant who had taken forcible possession of the house after her son had been ejected earlier. The question is whether the applicant has been rightly convicted under Section 448, Penal Code. Two reasons have been advanced for showing that the act of the applicant in entering into the house does not amount to criminal trespass as defined in Section 441, Penal Code. Firstly, it is pointed out that when the entry was made into the house, it was in the absence of the complainant and consequently there could be no question of any annoyance to him when the illegal act was done. Secondly, it was urged that the complainant was not in actual physical possession to attract the provisions of Section 441. Both these reasons are without any substance.

[4] The argument that the person against whom criminal trespass is committed should be actually present on the property at the time when the illegal act of taking forcible possession is committed by a person is rather startling. If a person in actual possession of a house or shop goes away temporarily leaving it locked and in his absence a third person, without any right, breaks open the lock and occupies the building, it would be absurd to hold that the trespasser was not guilty of criminal trespass because of the temporary absence of the person in actual possession. The language of Section 441 does not warrant such an inference. It runs thus : (His Lordship quoted the provisions of the section and proceeded : )

[5] It would be going against the very spirit of Section 441, if it were held that no criminal trespass would be committed against a person in peaceful possession merely because a trespasser manipulates his entry in such a way as to go to the property in possession of another at a. time when the person in peaceful possession has temporarily gone out. There is nothing in Section 441 to confine its operation only when the person in actual possession and the trespasser making the forcible entry are present physically on the property on which trespass is committed.

[6] In the case of - 'Govind Prasad', reported in 2 All 465 (A)', Straight J., pointed out that in view of the 'unusually vague and elastic language' of Section 441, care should be taken to see that Its scope is not so widened as to include within its fold cases which would not be fit even for civil proceedings. The opposite extreme of limiting its scope to an extent as to render the very object of the section nugatory should also be equ